MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Judiciary

By: Senator(s) Turner

AN ACT TO AMEND SECTIONS 99-17-9 AND 99-5-25, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A DEFENDANT MAY BE TRIED IN ABSENTIA WHO RECEIVED A NOTICE AND FAILED TO APPEAR AT THE APPOINTED TIME; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 99-17-9, Mississippi Code of 1972, is amended as follows:

99-17-9. In criminal cases a defendant may waive the right to be present at any proceeding by voluntarily being absent from it. The court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go forward despite failure to appear.

SECTION 2. Section 99-5-25, Mississippi Code of 1972, is amended as follows:

99-5-25. (1) (a) If a defendant, prosecutor, or witness in any criminal case, proceeding, or matter, fails to appear for any proceeding as ordered by the court, then the court shall order the bail forfeited and a bench warrant issued at the time of nonappearance unless the matter is tried and proceeds to judgment in the defendant's absence. The purpose of bail is to guarantee appearance and bail shall not be forfeited for any other reason. Upon declaration of such forfeiture, the court may issue a judgment nisi or may proceed to try the case upon its merits as provided in Section 99-17-9. If the court issues a judgment nisi, the clerk of the court shall notify the surety of the forfeiture by writ of scire facias within five (5) working days of the entry of such order of judgment nisi either by personal service or by certified mail. Failure of the clerk to provide the required notice within ten (10) working days shall constitute prima facie evidence that the order should be set aside.

(b) The judgment nisi shall be returnable for ninety (90) days from the date of issuance. If during such period the defendant appears before the court, or is arrested and surrendered, then the judgement nisi shall be set aside. If the surety fails to produce the defendant and does not provide to the court reasonable mitigating circumstances upon such showing, then the forfeiture shall be made final. Reasonable mitigating circumstances shall be that the defendant is incarcerated in another jurisdiction, that the defendant is hospitalized under a doctor's care, that the defendant is in a recognized drug rehabilitation program, that the defendant has been placed in a witness protection program and it shall be the duty of any such agency placing such defendant into a witness protection program to notify the court and the court to notify the surety, or any other reason justifiable to the court.

(2) If a final judgment is entered against a surety licensed by the Department of Insurance and has not been set aside after ninety (90) days, or later if such time is extended by the court issuing the judgment nisi, then the court shall order the department to revoke the authority of such surety to write bail bonds. The commissioner shall, upon notice of the court, notify said surety within five (5) working days of receipt of revocation. If after ten (10) working days of such notification the revocation order has not been set aside by the court, then the commissioner shall revoke the authority of the surety and all agents of the surety and shall notify the sheriff of every county of such revocation.

(3) If within twelve (12) months of the date of the final forfeiture the defendant appears for court, is arrested or surrendered to the court, or if the defendant is found to be incarcerated in another jurisdiction and a hold order placed on the defendant, then the amount of bail, less reasonable extradition cost, excluding attorney fees, shall be refunded by the court upon application by the surety.

SECTION 3. This act shall take effect and be in force from and after July 1, 2000.